Secretary of State for Communities and Local Government v West Berkshire DC [2016] EWCA Civ 441 (CA): the Court of Appeal has overturned the High Court's decision that the Secretary of State's alteration of planning policy regarding planning obligations for affordable housing by way of a Written Ministerial Statement (WMS) was unlawful. The court held that the question was whether the WMS on its face sought to countermand or frustrate the effective operation of ss.38(6) PCPA 2004 and 70(2) TCPA 1990, or whether it merely expressed the Secretary of State's substantive planning policy in unqualified, though trenchant, terms. Once it was accepted that the articulation of planning policy in unqualified or absolute terms was not in principle repugnant to the proper operation of s.38(6), that use of language was unobjectionable. The judge's consideration that a lawful planning policy must express its openness to exceptions – notably to the application of development plans which were inconsistent with it – was a legal mistake. The policy stated in the WMS was not to be faulted on the ground that it did not use language which indicated that it was not to be applied in a blanket fashion, or that its place in the statutory scheme of things was as a material consideration for the purposes of s.38(6) of the 2004 Act and s.70(2) of the 1990 Act, and no more. It did not countermand or frustrate the effective operation of those provisions. The judge had conflated what the policy said with how it might lawfully be deployed. The Secretary of State was not obliged to go further than he did into the specifics described by the judge, and so was not to be faulted for a failure to have regard to relevant considerations in formulating the policy set out in the WMS. The consultation was fair and adequate consideration given to the responses, and the Equality Statement was not inadequate. (11 May 2016)

See also the DCLG press release: Judgment paves way to build more homes on small sites.